If It’s Illegal for Protesters to Block a Highway, Why Are Trains Allowed to Do It?

Attempts by the states to regulate railroads in this way are preempted by federal law.

BNSF train in North Portland.
By Marty Smith

I'm increasingly noticing traffic backed up onto I-5 north from long trains blocking egress from the Water Avenue exit. If it's illegal for our protesters to block a highway, why are these trains allowed to do it? —Waiting

Allow me to answer your question on behalf of the Burlington Northern Santa Fe Railway Company: Because fuck you, that's why.

You think I'm being flip, and I'm sure that it won't be long before some BNSF flack comes along to remonstrate with me in wounded tones, but hear me out.

If you'd asked me this question in 2008—a more innocent time—I likely would have lulled you gently to sleep with Section 741 of the Oregon Administrative Rules, which in those days (foreshadowing!) forbade trains to block grade crossings for more than 10 minutes.

Unfortunately, in 2004 the Oregon Department of Transportation had the temerity to actually levy civil penalties on BNSF for violating this rule. The railroad sued, and in 2009 won a judgment from the Oregon Court of Appeals: Attempts by the states to regulate railroads in this way are preempted by federal law.

Don't blame then-Judge Ellen Rosenblum (now Oregon's attorney general) for this—and not just because she's married to WW's longtime publisher. The federal law is pretty clear; scads of other states' similar laws have been struck down in the same way.

But don't despair! Next time you're stuck at a crossing for an hour, just call the local Federal Railroad Administration office at 800-724-5998—they'll be happy to forward your complaint to state authorities. You know, the same state authorities who have no power to regulate the railroads. Which of the fingers on my right hand does this most remind you of?

In fairness to BNSF, they didn't create this situation. They're merely taking advantage of a circumstance that operates in their favor, like the hero of an ineptly scripted porno whose stepsister somehow gets her head stuck in the dryer.

It's also worth mentioning that all railroads enjoy these privileges. I've singled out BNSF because, as it happens, they're the ones who sued us, successfully, for the right to ignore Oregon's puny "laws."

If you really want to solve this problem, though, it's easy—all you have to do is convince Congress to act. (And if that's not a "fuck you," I don't know what is.)

Questions? Send them to dr.know@wweek.com.

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